Los Angeles Spousal Support Attorney
If you have questions regarding spousal support, speak with a Los Angeles spousal support attorney at Fernandez & Karney. Attorneys Mark Karney and Steve Fernandez are Certified Family Law Specialists with over 50 years of combined experience. Call us at (310) 393-0236 for a free consultation to find out how we can help you.
Spousal Support Overview
After separation, the court may order temporary spousal support to maintain the parties’ status quo as they go through the divorce process. On the other hand, the court orders permanent spousal support based on the circumstances of each party. The court will consider:
- the standard of living enjoyed during the marriage,
- the respective needs of each party, and
- the ability to pay.
While here are 14 statutory factors the courts is required to consider when making a permanent spousal support order, the decision to order spousal support, the amount, and the duration of support, rests within the court’s discretion.
Prior to the advent of no-fault divorce, spousal support was directly related to marital misconduct. In other words, spousal support was awarded by the state to penalize a “guilty” spouse who allegedly broke the bonds of matrimony. In most states, no-fault divorce laws have moved away from the idea that spousal support is a right. Even so, spousal support is usually the last piece of the financial puzzle to be finalized during a divorce, after child support and asset division.
While some states have few time limits on spousal support, others make spousal support nearly impossible to receive. The state of California generally falls somewhere between those two extremes, and while truly permanent spousal support is possible, it is not all that common.
Factors the Court Considers When Determining Spousal Support
Under California Family Code §4320, the amount and duration of spousal support are determined by weighing the following factors:
- Whether the spouse requesting spousal support significantly contributed to the education, training, license or career position of the other;
- Whether each spouse will be able to maintain the same standard of living established during the marriage, based on his or her earning capacity;
- The separate property of each spouse;
- The obligations and assets of each party;
- How long the marriage has lasted;
- The supporting party’s ability to pay spousal support, based on income, assets, standard of living and earning capacity;
- Whether the spouse requesting spousal support can work without significantly interfering with the interests of minor children in his or her custody;
- The age of both spouses;
- The health of both spouses;
- Consideration of emotional distress which resulted from domestic violence;
- Tax consequences to both spouses if spousal support were to be awarded;
- Hardships suffered by both spouses;
- Whether the spouse seeking spousal support could become self-supporting within a reasonable amount of time (general one-half the length of the marriage), and
- Other factors the court considers equitable.
Is There a Ten-Year Rule in the State of California?
Although many people believe California has a “ten-year rule,” which entitles a spouse in a marriage of at least ten years’ duration to receive permanent spousal support, this is not the case. A marriage which has lasted ten years or more is, however, an important milestone which can affect whether the court can revisit the issue of spousal support at some time in the future.
Further, as a general rule, spousal support in California can last half the length of a marriage that has lasted less than ten years. In marriages lasting longer than ten years, the duration of the spousal support is not set, rather the burden is on the paying spouse to prove spousal support is not necessary at some time in the future. The court has great discretion regarding the duration of spousal support, but in general the idea is that a receiving spouse is entitled to spousal support only for as long as it takes that spouse to become self-supporting.
While spousal support in California which is awarded in a long-term marriage might be referred to as “permanent,” it is actually very rare for a California judge to order truly permanent support. If the receiving spouse is claiming an inability to work or become fully employed, this claim must be supported with evidence. Long-term spousal support orders will usually reduce gradually over time, down to a very nominal amount. In other words, while the court will not terminate spousal support on a specific date, they can set a termination date which will go into effect unless the spouse receiving support applies for an extension prior to that date.
Are Alimony and Spousal Support the Same Thing?
Spousal support and alimony are essentially the same thing, although the term “alimony” has been phased out over the years, replaced with what is considered the more modern term of spousal support. Some states also use the term spousal maintenance. California generally uses the term “spousal support” to describe payments made by one spouse to another following a divorce.
Spousal support payments may be made from a husband to a wife following the divorce, or from a wife to a husband. The general idea is that the spouse who is financially stronger will pay the other until he or she is able to be self-supporting and live in essentially the same manner as they did while married. In many cases, one spouse may not be trained for employment, or could have been out of the workforce for a significant amount of time, making it difficult for that spouse to find a job and maintain the same standard of living they enjoyed while married.
Do All Divorces Include Spousal Support?
There is a common misconception regarding whether one spouse in a divorce will always receive spousal support. In fact, since most divorces are not litigated in court, it is difficult to determine just how often court-ordered spousal support is a part of the divorce. So long as an agreement between spouses meets all California legal requirements, the court will likely uphold the agreement—even if that agreement includes a waiver of support by the lower-earning spouse. Some estimates place the number of divorcing spouses who actually receive spousal support at only 10-15 percent. In the state of California, temporary support may be awarded while the divorce is in progress. This temporary spousal support is known as pendent lite support.
How is California’s Temporary Spousal Support Calculated?
A formula is used to determine temporary spousal support in the state of California, after the needs of the requesting spouse and the ability of the paying spouse to pay are assessed. As an example, in Santa Clara County, 50 percent of the income of the lower-earning spouse are deducted from 40 percent of the income of the higher earning spouse.
Adjustments for tax consequences and child support are factored in to the equation, returning what the courts believe to be an equitable amount of temporary spousal support. The marketable skills of the spouse requesting spousal support will be taken into consideration along with the current job market for those skills. The court will also consider the potential time and expense the spouse requesting spousal support will require to acquire the necessary education or training for employment.
Some Interesting Facts Regarding California Spousal Support
Most people who may either receive or be ordered to pay spousal support have plenty of questions regarding California laws on spousal support. Some of the facts regarding California Spousal Support include:
- The paying spouse is entitled to retire at age 65 in the state of California, and cannot be forced to work to continue paying spousal support beyond that age. If a paying spouse is forced into early retirement due to a health issue or other issue beyond his or her control, this could also result in an end to spousal support payments.
- If the paying spouse receives a significant raise after the divorce, this raise cannot be considered in awarding additional spousal support.
- If the paying spouse has experienced a serious reduction in income, due to involuntary termination or a health issue, the amount of spousal support could be either reduced or terminated.
- If the paying spouse operates his or her own business, and the business earnings have significantly diminished, the amount of spousal support obligations may be reduced.
- Unless the amount of spousal support paid has an annual “cap,” then in some cases regular bonuses or overtime income may be factored in to the amount of spousal support awarded.
- If the receiving spouse is awarded a substantial raise, the paying spouse may be able to legitimately have the amount of spousal support reduced, or even terminated.
- If spousal support is being paid to a spouse who appears to have no interest in ever becoming self-supporting, the paying spouse has the right to ask the court to order a vocational assessment. Courts are also allowed to assign the receiving spouse a “fictional” income, in a case where it appears that spouse is purposely avoiding employment.
- In the same vein, the receiving spouse may claim disability due to stress or depression which prevents him or her from returning to work. While this could certainly be a valid disability, an Independent Medical Evaluation may be recommended in order to determine what type of employment is available to the receiving spouse.
- The amount of spousal support may be determined in part by the level of assets awarded to the spouse requesting the support.
- Declaring bankruptcy is not likely to result in the paying spouse having his or her spousal support obligations discharged.
- Spousal support payments are usually a tax deduction to the paying spouse, while the receiving spouse must pay taxes on the payments.
- If a spouse who is receiving spousal support is living with a new romantic partner, the paying spouse may be able to petition the court to lower or totally eliminate the spousal support payments.
- If the receiving spouse remarries, the obligation to pay spousal support will terminate, however the paying spouse may need to obtain an order which terminates wage assignments if there is such an order in place.
- Barring a written agreement between the spouses which says no changes in spousal support will be sought, either spouse has the right to request a modification or termination of spousal support payments due to a material change in circumstances.
Spousal support could well be the largest financial obligation a spouse can incur during a divorce. It is important that both spouses be proactive to ensure spousal support is fair and equitable. The best way to do this is to discuss the issue with your California divorce attorney. It is your attorney’s job to ensure you receive/pay a fair amount of spousal support, and your divorce attorney is the very best person to look out for your rights and your future.
Speak to Los Angeles Spousal Support Attorney Today
Having an experienced Los Angeles Divorce Attorney and Certified Family Law Specialist on your side will help you achieve a successful result in your case. Whether you are a supporting or supported spouse, our experienced family law practitioners will zealously advocate your spousal support claims.